Criminal Background Checks, Affirmative Action – and You…
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Criminal Background Checks, Affirmative Action – and You…

Many employers, federal contractors included, run criminal background checks on their candidates. If you do not, you run the risk of hiring a dishonest or even violent employee. If you do and you do not run them correctly, you risk running afoul of federal and state anti-discrimination laws and fair credit reporting acts—and OFCCP scrutiny. Yes, you read right. The OFCCP may have something to say about your criminal background checks. Why? How does that work?

We know that under EO 11246, federal contractors not only cannot discriminate against applicants and employees on the basis of race, creed, religion, color, sex or national origin. We also know that under EO 11246 federal contractors with 50 or more employees and contracts valued at $50,000 or more each year must take affirmative action to hire  and advance such candidates. At the same time though, EO 11246 does not prohibit using criminal background checks in the hiring process. So what’s the problem? The manner in which a contractor runs and utilizes the information it obtains from a criminal background check may put it on the OFCCP’s radar. Since the OFCCP has essentially adopted the Equal Employment Opportunity Commission’s analysis and position on this issue, let’s look at what the OFCCP has to see how it applies to federal contractors.

The EEOC enforces Title VII of the Civil Rights Act of 1964, among other anti-discrimination laws. It protects the same group as EO 11246 from employment discrimination. No, ex-offenders, in and of themselves, are not protected under Title VII or EO 11246. For that matter, requiring criminal background checks of all applicants –or all applicants for certain positions—does not violate Title VII or EO 11246. So, again, what’s the problem? Certain practices, while themselves neutral, may be “hurting” a disproportionate number of   people protected under federal anti-discrimination laws, resulting in a discriminatory impact. Those practices too would then be violation of Title VII, and, by extension, EO 11246.  The EEOC, citing studies show that African-Americans  and Hispanics have significantly more arrests and convictions,  takes the position that blanket exclusions of all applicants with criminal histories therefore has a discriminatory impact on African-Americans and Hispanics, because such a practice will result in disqualification of otherwise qualified African-American and Hispanic candidates. Similarly, blanket exclusions arising out of credit checks, may have an adverse impact on a disproportionate number of otherwise qualified women, in addition to African American and Hispanic candidates.

In some ways, this issue takes on heightened significance for federal contractors, who not only have an obligation to refrain from discrimination, but who have to take affirmative action to hire qualified candidates within those classes protected under EO 11246. Part of a contractor’s compliance obligations is to review its practices and see if anything they are doing may be inhibiting them from meeting appropriate hiring goals with respect to minorities. To the extent that criminal background checks may be inappropriately weeding out otherwise qualified minority candidates. They may also effectively render the contractor non-compliant with Affirmative Action regulations.

In addition, most employers will also be subject to federal and state fair credit reporting acts, state anti-discrimination laws, and “ban the box” laws, often leaving employers feeling as though they are walking on eggshells during the entire hiring process.

So what can you do? How do you make sure to do your due diligence, ensure a safe workplace and honesty among your employees and avoid liability under this increasingly tangled legal web? Is it possible? Yes it is, and you can learn how. If you are interested, HR Unlimited is offering a webinar on this very topic on Thursday May 5, 2016 at 10:30 a.m., PST.  Click here to register.

For more information on this issue, contact Ahmed Younies at (800) 708-3655, x703 or ayounies@hrunlimitedinc.com.

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